Hello, welcome everybody and thanks very much indeed for joining me today. This is then the session through data law and this is running divorces and understanding the current expectations into 2024. So thank you very much for joining me. I'm Sa Mahmood and uh I'm going to be continuing with this session, which we started previously as two sessions as you know, for this course where I'm taking you through some of the developments and issues surrounding running divorce cases as well as dissolution of civil partnerships and separation cases as well as nullity. So in the last session, you remember, I spent a fair bit going through with you the position with a non fault divorce system that we've had in place. Now for some time, the fact that we've obviously still got cases under the old law. So the two are still running alongside each other. We looked at the process in applying for the divorce. Uh We had a look at uh the position with making sure that the paperwork is in order. Uh There's been some recent case law developments, particularly surrounding the need for marriage certificates. Uh and uh also the uh position surrounding the minimum time before one can lodge a divorce. Obviously, section 31, we looked at that 20 week period and the purpose behind that and uh also situations where you may be looking to dispute a divorce and defend a divorce. What I'm going to be doing today is continuing to develop some of these areas where we'll be looking at a position with whether costs should be claimed and in what circumstances under the new law and also what the position is we apply for conditional order and then final order thereafter. So I'll take you through some of those aspects also. So we're looking at a law as of June 2024. So as you know, when the new law came into effect on the sixth of April 2022 there was a change in terminology. So we're not using the word decree anymore. Instead we're referring to the order. So decree of divorce is now divorce order, decree of nullity is knowledge of marriage order. Decree of judicial separation, judicial separation order, the actual application is, is an application of the eight, is not a petition and decree nigh is now referred to as conditional order. Theyre absolute his final order. So in terms of the family procedures on the amendments, so part six, in particular, when it comes to progressing the divorce, we need to make sure that we're clear about the service provision. So when you do complete your D eight, you will be asked on there as to whether you are selecting court service or whether you're selecting solicitor service. And although you can ask the court to serve the paperwork upon the respondent or their lawyers, that's possible in some circumstances, you're going to need to be taking responsibility, not you personally, but you'll need to arrange service upon the respondent. So if you've selected court service, then that's where the court can then send the paperwork to the respondents, lawyers details as you've provided, which will then enable the paperwork to be sent to them through the portal and they will then get the acknowledgement. If the respondent hasn't got lawyers, then the address you've given and it should include not just a postal address but also an email address will enable them to call to effect service upon them there for you. In that regard, an email should normally be the responder, usual email address if one has been provided and the court therefore needs to send the paperwork not just by post but also by email if one has been provided in those circumstances. So that that information should obviously be made available on D eight when it's submitted. Can the court still serve through normal post rather by email? And the answer to that of course is yes. So you've got rule 6.8. So paragraph three, where if say an email address isn't provided for the respondent or uh the applicant doesn't seek email service upon the respondent. It's still possible for the court to serve by uh post in those circumstances. So that's fine. It might be the email address that's provided is incorrect, for example. So even that's uh would mean that uh services just through normal post. Now, if it's the case, that one is selecting non core service. So for example, in some circumstances, you have to select the solicitor service. This would be where, for example, if the respondent resides outside England. Well, so if they reside in Scotland, for example, you're going to need to select solicitor service or if the respondent is uh somebody who has got a deputy under the court of protection or has got an attorney because there's a lasting power of attorney on the basis that they do not have capacity. Perhaps then in all circumstances, you'll need to make arrangements for their deputy or their attorney to be served and like, say to Respondent resides outside England and Wales. So if to reside, say overseas, outside the UK, for example, then you'll have to arrange service, not you personally, but you can't ask the court to serve. You can still use the various methods of service through lawyers through court bailiff through process servers uh through obviously email uh and, and post in those circumstances that's available. But if you wish to affect service through other means, maybe through uh through social media, let's say uh sold through other methods, then you do need to submit ad 11 and seek permission to be able to do that and satisfy the court that the person could be then receiving notice through that means now, the other thing to note is if one is selecting solicitor service, there is a requirement to ensure that the respondent is then served within 28 days after issue of the application. If you do not serve within the 28 days or you need an extension of time you've served afterwards, then you should be applying for the extension of time to enable that process to be done. And this is pursuant to rule 6.6 B of the uh the F pr so that should be done. And when you do apply and it should be done on a form D 11. So you should be submitting that and asking for a court then to give you that uh permission for the extension of time, the court will pursue it to rule 6.6 B subparagraph four. Take into account the fact that the court has failed to serve the application uh if that is indeed the case and they'll also take into account what steps you took to comply with 6.6 terms of effective service and whether he acted promptly. So I'll take that into account and your application should be supported by evidence and may be applied for without notice. It's important to do that by way, of form D 11. Now, sometimes you may apply for deemed service. So this could be where let's say the respondent has got lawyers. Uh and uh it might be the case that they've got lawyers after the paperwork was issued. So if we didn't provide the details of the lawyers upon you submitting ad eight at court, so the respondent has instructed lawyers the after the lawyers have done an open letter to you to say yes, we've been instructed by so and so we're waiting for him or her to come and see us and they, they don't, they don't return the technology of our service. That's where you may then invite the court to be satisfied that the respondent has received the paperwork by way of using that open solicitor's letter to confirm that you can be implied from that, that they received the paper. So that's where you might want to apply for deemed service in those kinds of circumstances. Now, there is this uh divorce procedure update. This is guidance on changing the application in terms of service or confirming it's been served. So it is possible to change how the application was served and this was last updated last month on the first of May 2024. So when you first sign and submit application, you can choose how or how it is to be served. So as I mentioned, whether you're selecting solicitor service, so you or your representative at your firm can make arrangements or core service. So you select that. Like I say, in certain situations, you will have to select solicitor service if you're like I say, finding that the response is outside England and Wales, but you can change the service method after you've submitted. So if you did select say court service, but the respondent hasn't returned the acknowledgement service and you now want to use a solicitor service. You can do so. Uh and to do this, you would then need to uh ensure that uh you do ad 11. And you're asking the court to enable you to use uh the other methods of service in those circumstances, you could use D elevens to uh do other applications as well to apply for alternative service. Uh So for example, if you wish to serve through say social media, for example, if you can satisfy the court that they'll receive the paperwork through that method, if you wish to submit a divorce application without the original marriage certificate. For example, if it's en route, for example, as I mentioned in the previous session, you might want to do that to expedite a divorce or dissolution. You'll remember the 20 weeks that I've mentioned and the fact you can exceptionally apply to expedite that, for example, so that's where you can do ad 11 there. And as you'll see shortly, if you're seeking a cost order, for example, you'll be doing ad 11 for that purpose. And also, if you're applying to extend a service time, as I just mentioned, P CO2 6.6. Other examples where you can use general application to seek an order to disclose a response address. Maybe to rescind a conditional order where a conditional order has been granted. But uh the the person is applying to rescind that on the basis of procedural failure. For example, a procedural regulation in some way where you apply to stay, a conditional order, apply for permission to submit answer out of time, for example. So you can see you can use it for various circumstances there. If you apply for the respondents final answer, final order rather under section 92, then you can do that. Sometimes you may find that despite uh various efforts to try and serve the respondent, you just simply can't do so you, you've lost touch or your client's lost touch with the respondent. You've tried various methods to locate them. You haven't been able to do so. And that's where you may apply to dispense its service upon them. And that's by completing a form 13 B. So that is also possible uh in those circumstances also. So you may go down that route. Now, once the respondent has received a paperwork through the various methods that would have been used to affect service, then the respondent of course, should be returning the acknowledgement of service and they should be doing so within 14 days of service upon them uh if they were served outside of jurisdiction and there is they do have a slightly longer time to within which to respond after potentially, it could be 21 and even 28 days depending on where they were served. And they should be returned the acknowledgement to confirm that they received the paperwork and where and also to indicate whether they are going to be looking to dispute a divorce. You remember from the first session, I mentioned that there are restricted grounds upon which you can defend a divorce. For example, section 10 2 section 10 A of MC A that I mentioned last time, but you cannot contest the decision for divorce anymore. As I mentioned last time, you can also, your client can also dispute the divorce. So for example, you may have a situation where your client is saying, look, I dispute a divorce on the basis we're not even married. So for example, that case that we looked at in the previous session where the husband was disputing that they had a, a civil ceremony is one where he therefore was disputing the divorce on a basis. He was saying that they weren't married. So that's where if one does want to dispute the divorce or they may say actually they're already divorced, maybe then they are expected to then to file their answer within 21 days beginning with a date by which the acknowledgement of service form is required to be filed. So the total time one has to file their answer to set out their case as to why they are disputing is 35 days from the date of service of the documentation upon them. So you need to kind of bear that in mind. It is possible to apply to find an answer out of time. You need to do ad 11. You need to give good reason and accord and exercise their discretion whether to allow you to have that or not. But um you can see there this requirement to find the answer within 21 days ordinarily. Now, as you remember in the previous session, I did mention that once the divorce has been issued, then you're waiting that minimum period of 20 weeks before you're applying for the conditional order. Remember that's the first stage of the divorce only exceptionally. Can you expedite that? And when you are applying the court want to be satisfied that that 20 week period has expired and also a court would need to be satisfied that the respondent has returned. The acknowledgement or service has been affected upon them by one of the other methods. And if it's a joint divorce, remember that's where you got applicant, one and applicant two. then in those circumstances, 7.9 sub paragraph three provides an application for condition order may be made by the applicant or in the case of a joint application, it's got to be made by both parties or if it's a case of joint application, but that's not gonna proceed then by the one party in that regard. So make sure you're familiar with the updated guidance on apply for conditional order. This was last updated last month on the first of May 2024. I put a link there for you and this then relates to apply for conditional order for divorces lodged on or after the sixth of April uh 2022. So basically you can apply for conditional order uh 20 weeks after the divorce was issued. Ok. The court would need to be satisfied that the acknowledgement has been received or one has affected service through one of the other methods, whether through bailiff or process server, alternative methods deemed service or dispensation. And like I say, you got to wait that 20 week period and you'll know when you can apply for conditional order because you'll be getting a notification from the court and the court will then be notifying you to say that you are invited to then apply for conditional order. The next stage of the divorce in the case of joint applications. Uh So say I was for applicant, one you for applicant who is a joint divorce. Then just like we've both jointly completed AD eight, as I mentioned in the previous session, we don't both jointly then have to be completing the application for the uh conditional order. So both parties will need to apply with a joint application for the conditional order. Either can start the application and invite the others to complete it. That's fine. But what if say I'm for applicant one. And uh we still want to press ahead with a divorce, but let's say I contact you, you're for applicant to you take instructions from your client and your client has changed their mind as saying, well, actually, no, I don't want to pursue it anymore. Now, if that's the case, then I still need to complete my part of the form. We then have to wait 14 days to see if you're gonna complete your part. You, you want possibly because your instructions are not to continue with it. And then that's where we'll get a notification which will allow us to convert that joint uh divorce to a sole divorce and then we can press ahead with the rest of the divorce process on the basis that it's a sole divorce. So that's the way in which we'll uh we'll be able to do that. All right. So that's one of the drawbacks you'll see in dealing with joint divorces in the sense that potentially people may change their mind. In which case, you've got to wait for that period of time before you can then uh invite the court to transfer it to a, to a sole divorce. Basically. So that's where that comes in. So H MC TS will send you an automatic notification inviting you to switch to a sole application if you think the other side is not, thank God to be completing the paperwork and progressing with it. Ok. Now, once the application for conditional order has then been submitted either on a sole basis or a joint basis, it will then be in queue for the legal advisor to review. And if the legal advisor grants the conditioning order, you'll receive the email and you'll be told the date and the time that the conditional order hearing will be available. Ok. So like I say, that's where that, that provision that needs dealt with. And remember, you can also apply then to switch to the sole application. Now, once the court has received the application for condition and order or the judicial separation or the separation in the case of civil partners, then where it's not disputed, the court like say must be satisfied uh that um that the 20 weeks has passed of course and also that the respondent has received the uh the the paperwork uh in order to the respondent must have returned, the acknowledgment order must have been served through one of the other methods. And this is where as we say the matter will be listed before a judge for the making of that conditional order at the next available date. If the court is not satisfied at this stage, it may then direct any party to far further information and it may potentially list a matter for a case managing hearing. So there could be some issues at that stage which it really makes the court decide at that stage, they're not gonna be handing down or listing it for a hearing to hand down the condition and order. Now, it's also at this stage that it's important to bear in mind that you may also be claiming costs against the other side. Generally speaking, costs may not be sought under the new law because of course, it's become non fault, but there will be situations where in fact, there may be and this is where when a new law is coming into effect. The president of the family division, Sir Andrew mcfarlane put together some guidance in relation to costs which may be sought under the new law. And the president did say that in the great majority of applications, it's unlikely that the divorce will be disputed and therefore, parties will not be seeking costs against the other. But even where it is disputed grounds for opposition are going to be limited to issues of say jurisdiction or validity or subsistence sort of marriage. So again, costs may not necessarily be sought in those circumstances, but nonetheless, costs may still be sought in appropriate cases. Uh And uh costs can be granted pursuant to 28.2 of the F pr and also in reference to the CPR route 44.2. So in deciding whether or not to make any costs order. The court would have regard to all the circumstances taking into account the conduct of the parties, whether a party has succeeded or or successfully in the application. Then he offers to settle in that regard. And the main part here is obviously the position related to costs uh related to conduct, conduct both before and during the proceedings, compliance and non compliance with any preaction protocol or court directions or orders or directions or otherwise. And the effect of this provision is the president was saying that the court does have a wide discretion to award costs. Generally speaking, because we've now moved towards nonfault. Generally speaking, there may be no application made for costs and it's unlikely that it will be sought in these circumstances. There's no scope for the court to consider conduct of the parties or whether one is will as we used to do under the old law, we used to rely upon behavior maybe adultery. There's no scope for that anymore. Uh But it's conduct in relation to the proceedings like litigation conduct, which is relevant and that can be taken into account. So for example, if the conduct has been unreasonable, if a person has been, for example, evading service, for example, raising irrelevant arguments, for example, those types of situations and that's where costs may well be sought uh in those circumstances. So in the majority of cases, it's unlikely but it may be in some cases particularly if so, the matter is sometimes disputed if a person runs an argument, which really has very little merit. But it does mean that it's, it's then taken time, it's involved, uh judicial time, it's involved additional time on the part of the other parties. And that's where costs may be sought there based on the conduct of the party being unreasonable. And if you are going to be pursuing costs, uh that even though the D eight, as you know, and the other forms do not make provision for costs anymore. The previous D eight before the new Lord used to, of course, but the new D eight doesn't. And uh if it's a disputed case or somebody's disputing a divorce on a basis, there may be arguing, say that marriage doesn't exist, then costs may be sought at a hearing if it's listed in a standard case uh where it's not been disputed, but a person is seeking costs, then costs may be sought by way of application notice. And this is where basically you'll have to do ad 11. So practice direction seven A provides the procedure for this. And what essentially you'll need to do if you are seeking costs for somebody who perhaps has been deliberately evasive in terms of not returning the acknowledgement, maybe which has meant that you're about to spend a lot more time and money in instructing process servers which has taken time and obviously build up your client's costs So in that kind of situation, for example, you would then need to comply with practice direction seven A and uh this provides a paragraph 12.1 provides that any application for all their respective costs, so generally be made no later than the application for condition and order. So really should be made no later than at that stage. And it should set out in the application notice or written evidence, the grounds upon which you're seeking costs and also set out how you've calculated them. So there should be a summary setting out how you've calculated those costs. This should be served upon the other party uh with any written evidence of support uh and a certificate of service and the respondent would have ordinarily 14 days within which to provide a response, the court normally would deal with the application on paper. But if they feel there is a need for a hearing on this, then in fact, they can actually list a matter for a hearing and then call the parties in and make a determination at that stage. So that can be done if needs be, as I mentioned, people may sometimes dispute a case, they may dispute uh pursuant to rule 7.12 on the basis, they may say that the marriage never existed or it's already ended or the court doesn't have jurisdiction. So remember, it is still permitted under a new law to dispute a divorce in appropriate cases. Let's assume then that conditional order has been pronounced. And now as we said, you need to wait six weeks and a day before you can apply for final, as I mentioned in the previous session, there's a number of reasons where you may not apply for final order and it's important to therefore bear that in mind. But when you are ready to apply for final order and you've got this procedural guide which was updated last month, I'll put the link there for you and you can apply for final order from six weeks and one day after the conditional order has been granted, you, you do have 12 months on a date condition orders granted to apply for final order that's known as in time application. And in the case of a sole application, say if I was for say the wife and we haven't applied in time like you do in that period, then the respondent can apply three months after three months as parcel. We have to wait six weeks and a day we haven't done so then three months thereafter, the respondent can apply pursuant to section 929. So paragraph two of the MC A but if neither party has applied and 12 months has expired since the conditional order was pronounced. Now, this is where even though you can apply out of time, so to speak overdue application as it's referred to you do need to explain why you didn't apply during those 12 months. And it may be because the parties were maybe attempting a reconciliation. It might be because they were negotiating on the finance seats. But you do have to explain why they didn't apply within that period of time. And ordinarily what would be happening is once you do apply for final order on the portal, the court will process it within 24 hours of receiving the application. Unless there is an issue. It needs reviewing by a judge. And uh once it's been processed, you'll get the email notification that the final order has been granted. And then you can go on to the documents tab to cede and uh you can then print off the order. There. Both parties will receive a notification that they're eligible to apply for final order. Either party could apply for a final order first. Uh This is if it's the case of a joint, of course, uh if it's going to be a joint divorce, but just like we did with conditional orders, if say one of the parties changes their mind and doesn't wish to apply for a joint final order, then you wait that 14 days to be able to then get the notification to be able to convert that to a sole divorce and then you can progress on that basis. So that's in the case of joint uh divorces. So that's where then you'll be able to apply to switch that joint divorce to a sole divorce and therefore to enable you to progress the divorce and finalize it uh thereafter. Ok. So that's where that provision comes into play. Once the final order has been pronounced uh and handed and obviously sent, then that's where the marriage has legally ended. Now, with that in mind, it's very, very important to make sure that when you are applying for final order, we need to check and double check to make sure we are obviously applying on the on the right case and make sure that we do have our clients specific instructions to do so. And this was something that was raised recently in this case of Williams and Williams in April this year, uh handed down by the president. This was a case whereby the lawyer applied on the third of October 2023 for final order on behalf of the wife 5:14 p.m. that day. Uh but it was an error because in fact, they were to apply on another case, not on this particular one. Uh The H MC TCTS portal uh obviously is designed to then deal with sending back the uh defined order for very quickly. And in fact, some 25 minutes late, 20 minutes late, it was sent. So you can see how efficient it was. So it was received 535 on the same day, but the lawyer didn't discover until a day after or a couple of days after that. In fact, they applied under the wrong case. They contacted the court on a form D 11 and asked them to set aside the uh, final order. The court referred it to a president and the president said, well, actually in the circumstances, um, the court couldn't regard it as voidable due to by the lack of actual consent for the wife where her solicitors were generally authorized to act for her. And the court was entitled to accept the application for final order made by them as being validly being made on her behalf. There was no reason to consider setting aside the order, the conditional order having had validly being made and the wife having been entitled to apply for final order. And therefore, on that basis, the court said that there was really no reason and no basis upon which they can actually set aside uh that uh that order. So obviously, the implications from this case are very significant mistake was not defense here. And obviously, we must make sure that we are very, very careful in using the portal and maybe additional safeguards in the future may be required. But of course, we have to be very, very careful when we apply for fine order in these circumstances. As I mentioned, if 12 months has expired since the condition order was handed down, and then you apply for final order. You do need to, then when you do apply for final order, provide an explanation as to why the application was not made earlier. And finally, then you'll have some clients who may instruct you to pursue a divorce for them, but then they change their mind and that's where you've got a provision on the digital system where you can archive a draft uh divorce case. So you can archive. So basically just keep it there and uh you, you can keep it on the system. And then once and if the client changes their mind and wants you to un archive it, of course, you can do that and therefore proceed thereafter. So that provision is available on the uh the portal. Ok. So that brings us to the end of this session. So you can see I've covered a fair bit and over these two sessions going through the running of divorce cases as it currently is. Uh And also we've looked at some of the uh developing case law in relation to this matter. So you can see uh the new law is obviously working alongside the old law. We still have cases under the old and the new and it's very important to make sure that we're following the procedure as it's set out. Can I thank you very much indeed for listening. I hope that's been a useful session for you and I'll speak to you next time. Thank you very much. Bye for now.
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